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What the Supreme Court ruling on OSHA’s vaccine mandate means for employers

By Jeff Levin-Scherz, MD | January 19, 2022

The Supreme Court decision does not prevent most employers from instituting a vaccine mandate, but some will need different policies for different geographies to maintain compliance with state laws.
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About the series

Dr. Jeff Levin-Scherz provides regular updates on the latest COVID-19 developments with a focus on the implications for employers and guidance on how they can tackle pandemic-related challenges to keep their workplaces safe. Explore the series.

The Supreme Court of the United States overturned the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) that would have required employers with more than 100 employees to implement a vaccine or testing mandate next month. The Supreme Court allowed the Centers for Medicaid Services vaccine mandate for healthcare delivery organizations to go forward. A directive that federal contractors have a vaccine mandate in place is currently subject to an injunction by the Eleventh Circuit Court and was not part of the Supreme Court decision.

The Omicron variant is so contagious that very high levels of community vaccination are necessary to prevent outbreaks, and vaccine mandates are the only proven way in the U.S. to achieve to such high vaccination rates. This decision disappointed many public health advocates and will lead to less community protection from future outbreaks.

The Supreme Court decision does not prohibit employers from mandating vaccination. The court only held that OSHA cannot mandate these. Many employers have vaccine mandates in place, and they are likely to keep them because they are effective.

Additional employers may implement vaccine mandates in the coming weeks and months as they assess the risk that unvaccinated employees pose to their business and workplace safety. Some states and localities require at least some employers to have vaccine mandates, and some employers are requiring boosters.

On the other hand, the Kaiser Family Foundation reports that 14 states have laws or regulations that limit or prohibit employers from implementing vaccine mandates. The OSHA ETS will not preempt these state laws, so employers with geographically dispersed employees will likely need to implement different policies in different geographies.

The OSHA ETS would have required either a laboratory COVID-19 test or an observed rapid test as a potential alternative to the vaccination mandate. Absent this regulation, some employers that implement workplace testing will likely choose rapid antigen testing without observation or proctoring, which will lower the cost.

The CEO of United Airlines reported earlier this week that although 4% of United workers had contracted COVID-19 during the Omicron surge, there was not a single hospitalization or death from COVID-19 since its vaccine mandate went into effect. He reported that before the mandate there had been a death of a United employee every week.

Implications for employers:

  • The Supreme Court decision does not prevent most employers from instituting a vaccine mandate.
  • Vaccine mandates should comply with state and local laws and regulations, so many employers will need different policies for different geographies.
  • Employers remain responsible for workplace safety. Other efforts, including mask wearing, decreased density to allow better distancing, improved ventilation and testing can also help keep the workplace safe.

Health insurance to cover rapid tests

Employer-sponsored health insurance plans will be required to cover up to eight over-the-counter home COVID-19 tests per member monthly. The federal government released requirements this week. Insurance will have to cover eight tests per member, per month without cost sharing. If the health plan has a preferred network of providers for this test where it is available with no out-of-pocket cost, reimbursement for tests purchased at other sites can be limited to $12 per test.

Research shows that the rapid antigen tests are highly accurate at diagnosing COVID-19 when the virus is at high enough levels that people are contagious. However, these tests are less sensitive in picking up early disease. People who have upper respiratory symptoms and a negative antigen test should continue to isolate and obtain a PCR test. If a PCR test is unavailable, they can check a second antigen test one or two days later. People with positive antigen tests who have COVID-19 symptoms should assume they have COVID-19 and isolate to avoid transmission to others. Their infection will only appear in public reporting if they have a confirmatory PCR test.

Implications for employers:

  • Employers need to determine whether tests will be covered through the pharmacy benefit or the medical benefit and be sure that carriers have an “in network” option in place.
  • Employers must also communicate this benefit to their members.
  • Projections of plan costs are difficult because the volume of tests that members will obtain is uncertain. Right now, there are few available tests, although the Biden administration has promised it will distribute a billion or more tests.
  • Volume of tests acquired through this benefit will also depend on whether there is another wave of COVID-19 after the Omicron variant subsides. As there were three different variants last year, we should be prepared for additional waves.

Other developed countries have made tests more readily available at a much lower cost per test than can be realized through this policy.

Omicron wave might be peaking, yet nationwide, hospitals remain over capacity

There were 1.4 million new reported cases of COVID-19 on January 10, and researchers at the University of Washington estimated that last week Omicron peaked with 6 million new cases a day. This makes sense – I personally know of more people who contracted COVID-19 in the last two weeks than throughout the rest of the pandemic. The difference is that all of my friends, colleagues or family members who got COVID-19 recently were fully vaccinated and most were boosted if eligible – and no one, to my knowledge, was sick enough to need medical care.

Nonetheless, hospitals remain at overcapacity in many states. The U.S. currently has about 150,000 in the hospital with COVID-19, and this could double over the coming weeks. Some hospitals still have patients with the Delta variant in their intensive care units, and even those patients who are admitted to the hospital for another reason and have no COVID-19 symptoms need to be isolated. In some instances, COVID-19 can lead to hospitalization of a patient with chronic diseases like lung disease or diabetes, even if COVID-19 is not the primary diagnosis at admission.

Wastewater indicators of infection rates are falling on both coasts, so it’s likely that overall infection rates will drop soon. Rates of infection might take longer to decline in areas with lower vaccination rates, and hospitalizations will continue to climb for approximately two weeks after the infection rates start to decrease, and then they will decline.

Implications for employers:

  • The Omicron wave is likely to be shorter than previous waves, but the medical system is likely to take some time to catch up with care that was deferred during this time period.
  • The rate of community transmission remains high, so encouraging remote work can decrease the likelihood of occupational exposure.
  • Masks can help decrease the risk of workplace transmission substantially as noted below.

Upgrade your mask

Public health authorities recommended cloth masks for the public at the beginning of the pandemic because supplies of high-quality masks were limited – even hospitals and medical offices had a hard time obtaining enough personal protective equipment.

We know more about how COVID-19 is transmitted now, and there are much better options than cloth masks. Here’s data from a simulation published in the Proceedings of the National Academy of Science last month. This research shows that if a person is contagious and they talk with someone for 20 minutes, the chances of transmission are about 75 times higher if both are wearing surgical masks compared to both wearing well-fitting, high-filtration masks. Note: The researchers are in Europe, and they used PP2 masks with an adjustable nosepiece, which is equivalent to the U.S. N95 masks.

Chances of transmission are about 75 times higher if both are wearing surgical masks compared to both wearing well-fitting, high-filtration n-95 masks.

Likelihood of infection based on mask type

Percentages based on mathematical modeling; sources: Proceedings of the National Academy of Science and Axios.

Here is my take on masks:

Mask choice
  • Ideal masks have multiple layers of filtration, fit well and are comfortable enough that people use them consistently.
  • The best masks for protection are the following:
    • KN95: Mostly manufactured in China and not regulated. It’s best to be sure there is writing on the mask that says where it was manufactured and lists what regulation it meets, which should end in either 2019 or 2006. KN95 masks manufactured in the U.S. are a bit more expensive, and more likely to meet the standard of filtering out 95% of particles.
    • KF94: Manufactured in Korea and more tightly regulated.
    • N95: Should have “NIOSH” printed on it. No need to get a “medical grade” N95 mask, and many N95s are quite comfortable. N95 masks will have straps around the head, which give a better fit than ear loops. There are no N95 masks approved for children.
    • Several websites provide information on spotting counterfeit masks, as well as brand lookup.
  • Surgical masks have three layers and are electrostatically charged to increase filtration, but they usually fit poorly. A cloth mask over a surgical mask can decrease air escape around the mask to increase protection.
  • Masks with valves don’t protect others from your respiratory particles. Don’t wear them.
Mask use
  • No need to wear a mask outside unless you are in a dense crowd or you have a compromised immune system.
  • Don’t remove your mask to talk. The risk of transmission is highest when your mouth is open.
  • The mask should always cover your mouth and nose. Don’t wear your mask as a “chin diaper.”
  • Masks can be reused for a number of days; they should be discarded when they are soiled or if the straps are stretched or torn. They can be stored in a paper or mesh bag, and many people rotate masks from day to day.

Implications for employers:

  • Employers can consider recommending the use of well-fitting, high-filtration masks when there is a high rate of community transmission.
  • Masks protect both the wearer and all those nearby.
  • At this point, mask requirements should generally include all employees and visitors regardless of vaccination status.

COVID-19 vaccine for children

Children remain under-vaccinated in the U.S. Only 15% of children ages 5 to 11 and 53% of children ages 12 to17 have been fully vaccinated.

The evidence of effectiveness of vaccination for children is clear. Vaccines are associated with the following:

  • 94% decreased risk of hospitalization and 98% decreased risk of needing intensive care among children ages 12 to 18. Source: New England Journal of Medicine
  • 91% decrease in Multisystem Inflammatory Syndrome in Children (MIS-C), which can be life threatening. Not a single patient with severe MIS-C in this study had been fully vaccinated. Source: Center for Disease Control and Prevention (CDC) Morbidity and Mortality Weekly Report
  • Decreased risk of long COVID-19 by about half for all ages. Source: Nature
  • The possibility that COVID-19 infections are associated with three times higher rates of new onset diabetes in children, although the researchers did not adjust for obesity and used claims data rather than electronic medical data, so this should be considered preliminary. Source: CDC Morbidity and Mortality Weekly Report

Some parents might worry about reports of a link between mRNA vaccines and heart inflammation (myocarditis), especially in teenage boys. The risk of heart inflammation from COVID-19 itself is substantially higher than the risk from the vaccination – and those who have had this adverse effect have all recovered. Heart inflammation from COVID-19 can cause permanent damage. Recent evidence shows the rate of vaccination-related heart inflammation among children ages 5 to 11 is very low (about 1 in 800,000).

Vaccinating kids keeps schools open, protects teachers and staff and keeps children from infecting more vulnerable family members including siblings under age 5 who are not yet eligible for vaccination.

Implications for employers: Continue to encourage employees to get their children vaccinated!


Population Health Leader, Health and Benefits, North America

Jeff is an internal medicine physician and has led WTW’s clinical response to COVID-19 and other health-related topics. He has served in leadership roles in provider organizations and a health plan and is an Assistant Professor at Harvard Chan School of Public Health.

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